131 Ga. 89 | Ga. | 1908
(After stating the foregoing facts.)
Hicks made affidavit for the purpose of obtaining a warrant to dispossess Beacham as his tenant. On the trial, the court dismissed the affidavit and warrant, because the affidavit neither alleged that the rent had not been paid nor that there had been -a demand and a refusal to pay it. The contract of lease was to extend for fourteen years, but contained a provision that if the tenant failed to pay the rent as stipulated, or failed to perform the other covenants of the lease, the landlord should have the right to declare the lease terminated at the end of anv year pending the same. ■ '
By the act of December 11, 1811, it was declared that “If any person leasing or renting land, house or houses, shall fail to pay the rent at the time the same shall become due, it shall and may be lawful for tire lessor, immediately thereafter, to enter and retake possession of the premises so by him leased or rented.” (Cobb’s Digest, .900.) No summary mode of legal procedure was provided by that act. By the act of December 24, 1827, it was provided that when a tenant held over beyond the expiration of his lease, and
The present case does not involve any tenancy at will or by sufferance. If the plaintiff is entitled to recover, it must be on one of the other two grounds. If a landlord bases his right to a summary recovery on non-payment of rent, as a statutory ground, the rent must remain unpaid when the proceeding is begun. An acceptance of rent after it is due will operate as a waiver of the right of summary dispossession for non-payment. The landlord can not accept the payment after the day when it is due and still proceed^to dispossess his tenant under the statute, on the ground that it was not paid on such day. If the plaintiff sought to rest his ease on this ground, the affidavit was insufficient in not alleging that the rent had not been paid, or showing a failure or refusal to pay when the affidavit was made.
If the proceeding'should be considered as resting on the ground that the tenant was holding over beyond the term of his lease, in order to sustain this position it would be necessary to show that a forfeiture had occurred. His wffiole term extended for fourteen years; and unless there was a forfeiture, it had not expired. The claim that the plaintiff had a right to proceed by affidavit and warrant to dispossess must depend upon whether it was shown that the lease had terminated, by forfeiture, at the end of the year 1906. The contract did not provide for a termination of the lease by its own operation upon failure of the lessee to pay his rent, nor within some specified time after such failure, nor did it waive demand for sent as a condition of forfeiture. On this subject its language was
Thus the plaintiff was not entitled to dispossess the tenant on the ground of non-payment of rent, because it did not appear that the rent was unpaid when the proceeding was begun; and he was not entitled to recover possession on the ground that the lease had been forfeited and become void at the end of the year 1906, because he did not show that he had taken the steps necessary to avoid it, and thus to place the tenant in the situation of one holding over beyond his lawful term. It will be observed, too-, that the rent was payable in cotton to be delivered at such warehouse as might be designated by the landlord; and there was no allegation that any such designation was made. Accordingly the presiding judge did not err in dismissing the proceeding. No point was raised as to whether the mere .allegation-that the lessor, who retained the power of forfeiture, was the “grantor” of the plaintiff, was sufficient to show the existence of the power in the latter. .
Judgment affirmed.